ORDERS:
DECISION AND ORDER
STATEMENT OF CASE
This matter comes before me pursuant to the Petitioner's challenge to Administrative Order
95-44-SW, issued by the South Carolina Department of Health and Environmental Control
(DHEC) on October 26, 1995. A hearing was held on February 22, 1996, at the office of the
Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their
credibility, taking into consideration the burden of persuasion by the Parties or Protestants, I
make the following Findings of Fact by a preponderance of evidence:
1. Notice of the date, time, place, and nature of the hearing was timely given to all parties.
2. David Peeler owns property at 131 Crawford Road, Blacksburg, South Carolina, which
is adjacent to U.S. Interstate 85. On this tract the Petitioner has accumulated piles of split
tires. He also keeps cattle on the property.
3. Eric Snow, the solid waste coordinator for the Appalachia III District, is responsible for
inspecting solid waste facilities, investigating open dumps, assisting in the permitting
process, and ensuring compliance with DHEC statutes and regulations. As a result of a
referral, Mr. Snow visited the Crawford Road site in December, 1994. After meeting with
the Petitioner, Mr. Snow advised the Petitioner not to accept additional tires at the site until
its permitting status was determined by DHEC. The Petitioner advised him that two
truckloads were en route at that time, to which Mr. Snow did not object based on the
Petitioner's allegation of financial hardship.
4. The tires on the site include approximately 36 tires removed by the Petitioner during the
past two years from various pieces of farm equipment used by him in the operation of his
farm; approximately 75 tires which the Petitioner received as whole used tires in 1992
before the effective date of the Solid Waste Management Act; and approximately 2,000 cut
tires which the Petitioner received in 1994 and 1995.
5. The Petitioner was paid $200 per truckload for the split tires placed on his property. He
stated a desire to sell these tires in the future.
6. The Petitioner stacked some of the split tires at his site to create a small tire corral. He
argues that he uses the corral to manage his cattle. Although most of these tires are placed
concave-side down, some are concave-side up and thus have the potential to accumulate
rainwater. Furthermore, the remaining tires at the Petitioner's site are piled randomly
concave-side up or down.
7. The environmental problems posed by uncontrolled "waste tire" disposal are not
eliminated simply because the tires have been split. Tires which are loosely stacked and cut
have the potential to burn, creating dense smoke and are a threat of water contamination
due to the oily runoff. Additionally, improperly stored tires, whole or split, have the
potential to accumulate rainwater which provides breeding conditions for mosquitos.
8. Placing "waste tires" on the ground, split or otherwise, brings that activity within the
regulatory authority of DHEC. No permit has been issued by DHEC to the Petitioner for
"waste tire" disposal at the Crawford Road site. Furthermore, the Department received no
request or documentation as required by S.C. Code Regs. 61-107.3 (I) (Supp. 1995) for a
waste tire disposal facility permit, and therefore, did not evaluate the proposed activity for
such a permit.
9. The tires at 131 Crawford Road are "waste tires" as defined in S.C. Code Ann.
§44-96-40 (67) (Supp. 1995). These tire were stored in violation of the Solid Waste
Management Act and S.C. Code Regs. 61-107.3 (Supp. 1995).
10. The civil penalty of $1,200.00 assessed by DHEC in Order 95-44-SW is proper in this
case. Additionally, the requirements of Order 95-44-SW appropriately address the removal
and disposal of the "waste tires" on the Petitioner's site. See Respondent's Exhibit 25.
CONCLUSIONS OF LAW
Based upon the above findings of fact, I conclude as a matter of law the following:
1. The Administrative Law Judge Division has subject matter jurisdiction in this action
pursuant to S.C. Code §§ 1-23-600 (B) and 48-1-50 (Rev. 1987 and Supp. 1995).
2. S.C. Code Ann. §§ 44-96-100 (1) and (2) (Supp. 1995) provides the authority for DHEC
to promulgate regulations relating to the management of waste tires. Those regulations are
promulgated in S.C. Code Regs. 107.3 (Supp. 1995). The Solid Waste Management Act
and Regulation 61-107.3 grants DHEC the authority to regulate the removal and disposition
of the "waste tires" on the Petitioner's site. Regulation 61-107.3 (E)(3) provides that "no
person shall dispose of waste tires or processed tires except at a permitted solid waste
facility." Such a solid waste management facility must be permitted in accordance with
DHEC regulations. S.C. Code Regs. 61-107.3 (E)(1).
3. The Petitioner contends that the cut tires at his site on Crawford Road are "processed
tires" from a permitted "waste tire processing facility." Therefore, the Petitioner argues that
he is merely recycling these "processed" tires. A "processed" tire is a "waste" tire that has
"been cut, shredded, burned or otherwise altered so that it is no longer whole." S.C. Code
Regs. 61-107.3 (B)(4). However, the mere fact that tires are cut or "processed" does not
mean that the Petitioner may stockpile these tires upon his property. In fact, the Petitioner
is not recycling these tires at all. Regulation 61-107.3 (B) sets forth that tire recycling
consists of "any process by which waste tires, processed tires, or residuals are reused or
returned to use in the form of products or raw materials." The Petitioner's building of a
corral with these tires does not convert the tires to a product or return them to raw
materials.
The Petitioner's placement of split tires on the ground, whether in the form of a fence or in
random piles, constitutes tire disposal. " 'Tire disposal' means to deposit, dump, spill or
place any waste tire, processed tire or residuals into or upon any land or water." S.C. Code
Regs. 61-107.3 (B)(11). A site where waste tires are disposed of by burial or recycling is
entitled a "waste tire disposal facility." Such a facility is required to be permitted by DHEC.
Regulation 61-107.3 (I) requires numerous facts that must be established before such a
facility may received a permit from DHEC.
4. Clearly, the Petitioner has not requested or established the foundation to receive a permit
as a "waste tire disposal facility." Rather, he contends that since the definition in Regulation
61-107.3 (B)(13) of "waste tires" does not include "processed" or cut tires, the
requirements pertaining to a "waste tire disposal facility" are not applicable to his site.
However, Regulation 61-107.3 (I) sets forth the requirements for the disposition of waste
tires. In setting forth these requirements, it specifically addresses the "land disposal of cut
or chopped tires . . .." Furthermore, Regulation 61-107.3 (C)(3) provides that if the
Petitioner intends to store cut tires upon his property for a period greater than 30 days,
those tires must be cut at a minimum into eighths. An exemption from that requirement
could be attained from DHEC by specific approval but only on a case-by-case basis. The
Petitioner never sought nor obtained such an exemption in this case.
5. The Petitioner also argues that his site is exempt from regulation because the tires were
used for agricultural purposes to corral cows he keeps on the property. Regulation
61-107.3 (D) allows six exceptions to the permitting requirements set forth for waste tire
disposal in South Carolina. Of those exceptions, Regulation 61-107.3 (D)(5) provides that
a person is exempt from the permitting requirements if that individual uses the waste tires
for agricultural purposes. However, Regulation 61-107.3 (B)(14) specifically defines the
use of waste tires for agricultural purposes as "tires which are generated during the normal
production of plants and livestock and which are kept onsite for beneficial reuse." Waste
tires, whether whole or processed, brought from off-site to a farm are not generated during
the normal production of plants or animals. Therefore, the mere use of processed tires to
construct a fence, albeit a fence which prevents cows from wandering into the road, does
not transform them into "waste tires for agricultural purposes." Furthermore, even if the
Petitioner was using the tires on his site for agricultural purposes, Regulation 61-107.3 (D)
requires that the tires at the site must be "maintained so as to control mosquitoes or other
public health nuisances as determined by the Department." The Petitioner has never sought
a determination from the Department or received approval for his method for storing the
tires at his site.
6. The legislative purpose of the Solid Waste Management Act encourages reduction in the
volume of waste consigned to landfills by encouraging recycling or reuse, so long as the
alternative methods adequately protect public health and the environment. S.C. Code Ann.
§44-96-50(A) (Supp. 1995). The uncontrolled disposal of tires pose an environmental and
public health threat which the Solid Waste Management Act is intended to prevent.
7. Discharges into the environment except as in accordance with a properly issued permit
constitutes a violation of the Pollution Control Act for which a civil penalty may be assessed
not to exceed $10,000 per day. S.C. Code Ann. § 48-1-330 (1976).
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is hereby:
ORDERED AND ADJUDGED that a civil penalty of $1,000.00 is assessed against the
Petitioner. It is further ordered that the Petitioner submit an acceptable plan for the removal and
disposition of the tires at the Petitioner's site as directed in DHEC Administrative Order
95-44-SW.
AND IT IS SO ORDERED.
__________________________________
Ralph King Anderson, III
Administrative Law Judge
Columbia, South Carolina
May 30, 1996 |
